There are few industries that have been or will continue to be affected by the National Labor Relations Board’s (“NLRB”) recent pro-labor composition than the healthcare industry. These developments include changes in rules and precedent specifically applicable to employers in the healthcare arena, and other changes that are more general in nature.2 As a result of these changes, it could become increasingly easier for unions to organize employees in the healthcare industry. This article focuses on the convergence of two potential developments – the likely change in the definition of “supervisor” under the National Labor Relations Act (the “NLRA” or “Act”)3 and the NLRB’s recent proposal to expedite the procedures for union elections – and how these two developments combined could hamper an employer’s ability to effectively oppose a union-organizing campaign.

Supervisor Status Under the Act

Section 2(11) of the Act defines the term “supervisor” as “any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”4 Thus, individuals are statutory supervisors if (1) they hold the authority to engage in any one of the twelve supervisory functions; (2) their exercise of such authority is not merely routine or clerical in nature; and (3) their authority is held in the interest of the employer.

The definition is significant because supervisors are not protected under the Act and cannot be part of a bargaining unit.5 They are the employer’s agents and, should employees elect a union and some day go on strike, the supervisors would be the core group left to provide patient care. Supervisors can be ordered to assist the employer in responding to organizing campaigns and are many times an employer’s most important asset in mounting an effective opposition because of their direct relationship with the voting employees. It is often, though not always, in the best interests of employers to have the supervisor term interpreted as broadly as possible so as to narrow the number of employees covered by the Act.

The current leading precedent on the definition of “supervisor” arose in the context of a healthcare employer. In Oakwood Healthcare, Inc.,6 the NLRB interpreted the supervisor definition broadly and held that the bulk of the charge nurses employed at an acute care hospital were statutory supervisors and thus excluded from the bargaining unit sought by the union’s petition. The NLRB found that the charge nurses assigned nursing personnel to the specific patients for whom they would care and held that such assignments, alone, were enough to satisfy the statutory definition of “assign” under the Act.7 The NLRB further found that the charge nurses exercised independent judgment in making such assignments because “a charge nurse’s analysis of an available nurse’s skill set and level of proficiency at performing certain tasks, and her application of that analysis in matching that nurse to the condition and needs of a particular patient, involves a degree of discretion markedly different than the assignment decisions exercised by most leadmen.”8

At the same time, the NLRB held that the charge nurses working in the emergency department were not statutory supervisors because their primary functions were to perform triage and to keep other units within the hospital informed of possible admissions from the emergency department.9 The fact remains, however, that the supervisor definition outlined by the NLRB in Oakwood was a major victory for healthcare employers and employers in general. Organized labor has made it clear that this is a case it would like to see the NLRB revisit and reverse.10

The Oakwood decision was decided by 3-2 margin and a Republican majority NLRB. Former Board Member Wilma Liebman issued a scathing dissent in Oakwood, opining that the majority’s decision “threatens to create a new class of workers under Federal labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of ordinary employees.”11 Liebman thus opined that an individual should not be classified as a supervisor if the only supervisory duty performed is simply designating a task or tasks.12 If Oakwood is revisited, the current composition of the NLRB would likely adopt Liebman’s dissent, thus resulting in a narrower interpretation of “supervisor” under the Act.13 This would make it more difficult for healthcare employers to classify charge nurses and other lead employees who merely assign duties on a daily basis as supervisors. Thus, in a union organizing drive, these individuals could be part of the bargaining unit, could advocate unionization to the workers they oversee, and could not be used by the employer in its response to organizing efforts.

The NLRB’s “Quickie Election” Proposals

The impact of a potentially narrower definition of supervisor is compounded by the NLRB’s recent proposals to expedite the union election process – commonly referred to as a “quickie election” process. On June 22, 2011, the NLRB issued a Notice of Proposed Rulemaking14 suggesting numerous changes to the procedures governing union elections. One of the most notable proposed changes is the timing of the election itself. The NLRB’s proposed amendments would reduce the time between the filing of a petition and the election, with elections being held as early as 10 days after a petition is filed. In 2010, the median timing of an election was 38 days after the filing of a petition.15

Equally as important for purposes of this article are the specific proposals regarding pre-election litigation. First, the amendments would require that any pre-election hearing disputing the right of the union to hold the election be held within seven days of when the hearing notice is served.16 Currently, NLRB Regional Directors have flexibility in scheduling the pre-election hearing and can consider special circumstances. Second, before the hearing begins, employers would be required to file a Statement of Position explaining in detail all of their legal objections to the election.17 Notably, failure to object to an issue would be fatal because the objection would be deemed waived. Third, prior to an election, the hearing officer will only rule on disputes that would affect more than 20 percent of the bargaining unit.18 Fourth, if the hearing officer does rule prior to the election, parties cannot request review of the ruling by the NLRB until after the election.19

On November 30, 2011, the NLRB conducted a public hearing where it adopted a resolution20 to proceed with issuing a final rule on a subset of the proposals contained in the June 22, 2011 Notice of Proposed Rulemaking.21 The resolution does not specify which proposals will be part of the final rule, but it does generally specify that the final rule will, among other things, limit pre-election hearings to the issue of whether a genuine question concerning representation exists that would prevent the need for an election. This will likely include a prohibition against pre-election litigation over the supervisory status of employees in the bargaining unit sought by a petitioning union. In his hearing statement in support of the resolution, NLRB Member Craig Becker indicated that litigation over supervisory status is a prime example of the type of pre-election litigation he intends to preclude under the forthcoming final rule.22

The problem these changes create for healthcare employers as it relates to the statutory supervisor issue is significant and will no doubt lead to significant union gamesmanship during the petition and election process. Among other things, a union’s election petition could seek a proposed bargaining unit that includes charge nurses and other lead employees who are potentially on the borderline between supervisory and employee status. Although an employer has a right to challenge their inclusion in the proposed bargaining unit prior to the election, if such employees do not comprise at least 20 percent of the proposed bargaining unit (which is likely to be the case), the NLRB hearing officer will not rule on the challenge until after the election is conducted. The employer would thus be handcuffed with respect to its use of these arguable supervisors in opposing the union’s organizing efforts prior to the election due to the risk that the hearing officer could retroactively rule after the election that the individuals were not supervisors and thus were protected under the Act. The net effect is that the employer has no choice but to rely only on upper-level management employees who clearly fall within the supervisor definition.

What Can Employers Do?

In anticipation of the likely reversal of Oakwood and the corresponding effect that the NLRB’s quickie election proposals would have on the supervisor issue, healthcare employers should review the job duties and responsibilities of charge nurses and other lead persons at locations particularly at risk to union organizing efforts and ensure that these employees are doing more than merely assigning tasks (e.g., evaluating employees for raises, hiring subordinates, making effective recommendations for hire, and authorizing time off or overtime) to ensure that those individuals will be classified as supervisors in future organizing campaigns and elections. To the extent that additional supervisory responsibilities can be assigned to these individuals, such changes should be made to remove any doubt about the supervisory status of these key employees. Without such certainty, employers may have to forego using one of their most effective campaign tools while at the same time operating under a much more expedited election process that gives the employer less time to respond to the campaign and educate its employees regarding their voting decision.

Greg Robertson is the Co-Chair of Hunton & Williams LLP’s global employment litigation and labor management relations practice and serves as the Co-Chair for the Firm’s Healthcare Reform Initiative. Ryan Glasgow is an Associate at Hunton & Williams LLP in the same practice group. Both Mr. Robertson and Mr. Glasgow routinely represent management in all facets of complex traditional labor law matters, including responding to and terminating corporate campaigns, labor-management relations, union representational proceedings, collective bargaining negotiations, and strike contingency planning. Mr. Robertson can be reached at grobertson@hunton.com, and Mr. Glasgow can be reached at rglasgow@hunton.com.

For example, organized labor, including the United American Nurses, AFL-CIO (now known as “National Nurses United”) supported the Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act (H.R. 1644, S. 969) (the “RESPECT Act”), which, had it passed, would have dramatically limited the scope of the definition of “supervisor” under the Act.

The Board currently consists of two Democrats and one Republican. The recess appointment for one of the Democratic members (Craig Becker) will expire on December 31, 2011, and it remains to be seen whether the House of Representatives will stay in pro forma session in order to avoid another recess appointment by President Obama. If it does not, President Obama will no doubt appoint another Democrat to the NLRB, thus restoring the 2-1 Democratic majority on the Board.

Though the NLRB has not indicated when the final rule will be released, it is suspected to be before December 31, 2011, which is when the NLRB will likely lose its three-member quorum as a result of the expiration of Member Becker’s recess appointment.

Indeed, Member Becker’s example specifically referenced a healthcare employer, thus sending the signal that he believes that the supervisory issue (including the scope of the “supervisor” definition and the prohibition against litigating prior to the election over that issue) is of particular significance to representation proceedings in the healthcare industry.